Microsoft Corporation, No. A13-251580: Microsoft ran an ad beginning, “Ymay ivatepray e-mailway isway onway ofway eirthay usinessbay.” It continued: “Pig Latin may be hard to understand, but you probably need it if you use Gmail, because Gmail scans every word of your e-mails to sell ads. But Outlook.com doesn’t. And you can choose to opt out of personalised ads. To stop Gmail from using your e-mails, use Outlook.com. Learn more at KeepYourEmailPrivate.com and keep your e-mails ivatepray”. Complainants challenged the ad because Microsoft scans email too.
Microsoft rejoined that scanning email for ad targeting was different than standard scanning for viruses and spam, which consumers expect and which doesn’t involve data retention. (What about scanning emails for trade secret leaks?) The ASA agreed: the ad specifically mentioned scanning for ad targeting, rather than “protective” scanning, and consumers would perceive ad targeting as raising privacy issues (that, by implication, virus/spam scanning does not, though carried out through the same automated mechanisms). Thus, the ad was not misleading.